In addition to wliat has been said by Mr. Justice Works, — in whose conclusion and views I concur,—I wish to say that, in my opinion, the fault imputed to the proposed bill of exceptions in question here, viz., that it is too meager,— is one that is entitled to some indulgence.
The great and crying evil is, not that such draughts are too short, but that they are generally too long, and that, being allowed substantially on the scale and in the form in which they are presented, the counties are burdened with the expense1 of transcribing or printing masses of rubbish which serve merely to cumber the records and waste the time of this court.
We have decided that the judges of the superior courts are justified in refusing to settle, a bill of exceptions where the draught proposed contains a full transcript of the "short-hand notes of the trial (People v. Sprague, 53 Cal. 423), and over and over again we have called attention to section 1175 of the Penal Code, which provides: “A bill of exceptions must contain so much of the evidence only as is necessary to present the questions of law upon which the exceptions were taken; and the judge must, upon the settlement of the bill, whether agreed to by the parties or not, strike out all other matters contained therein.”
Possibly some good has been accomplished by these admonitions, but the evil referred to, if ameliorated, is by no méans cured.
For this reason, I repeat that if counsel in a particular case happens to commit the unusual error of making his draught too brief, the fault is one that merits some indulgence, especially as it cannot result in any very serious inconvenience to the judge who is called upon to settle the bill of exceptions.
In our practice, the motion for a new trial is always made before judgment (Pen. Code, sec. 1182), and without any preliminary statement of the evidence or specifications of error. (People v. Fisher, 51 Cal. 319.) If *489one of the grounds of the motion is that the verdict is contrary to the evidence, that ground will generally be abandoned after the motion is overruled, in all cases where there is a substantial conflict of evidence upon the material issues, and there will be no exception to the order on the ground that the evidence is insufficient. If, however, the defendant insists upon presenting the. question of the sufficiency of the evidence to this court upon appeal, he is forbidden to make a complete transcript of the reporter’s notes into his proposed bill of exceptions, and must put the testimony of the witnesses-in narrative form, with as little repetition as possible. In-attempting to do this every lawyer, even the most experienced, is liable to err on one side or the other, and usually, as we have, seen, his error is in the direction of unnecessary prolixity. In such case it is made the duty of the judge who settles the bill of exceptions to strike out all redundant and superfluous matter, as well as to see that what remains conforms to the truth. This necessarily involves a careful reading and comparison of the draught with the reporter’s notes or other record of the proceedings, and it follows,'of course, that the longer the draught the greater is the amount of labor imposed upon, the judge. If, on the other hand, it happens, as in this case, that the draught of the bill contains no adequate statement of the evidence, it is a very simple matter, involving a trifling amount of labor, to remedy the defect.
If the omissions are comparatively slight, the judge, with the assistance of the district attorney, may suggest the necessary amendments. If the omissions are serious and extensive, counsel may be required to present a full statement of the evidence for the people, or to abandon his exception on the ground of insufficiency of the evidence. If he refuses or neglects to do either, then the judge would be justified in adding to his statement of the evidence a general statement that other evidence was *490introduced on the part of the people tending to prove all the allegations of the indictment or information, which is all that would be necessary to render the exception harmless.
As to other grounds of exception, the statement of evidence necessary to present them fairly is usually short, and even when it is unfairly set out in the draught no great amount of labor is ordinarily required to amend it. It is better, in my opinion, that the judge, with the advice and assistance of the district attorney, should perform such labor than refuse to settle the bill of exceptions, upon the ground that counsel preparing the draught has attempted to practice a fraud upon the court, unless the evidence of such design is far more gross and manifest than it can be said to be in this case.
Paterson, J., concurred.